Com. v. Brown, V.

J-S11033-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

VICTOR RENAIL BROWN :

:

Appellant : No. 415 WDA 2020

Appeal from the PCRA Order Entered March 16, 2020

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0003268-2015

BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 8, 2021

Appellant, Victor Renail Brown, appeals from the order entered March

16, 2020 dismissing his first petition filed under the Post Conviction Relief Act

(“PCRA”).1 We affirm.2

On December 7, 2015, Kathleen Patterson reported to the police that

she had opened a locked door in a bedroom in her home in Charleroi,

Pennsylvania where Appellant had been staying and saw a scale and other

drug paraphernalia in the room. An officer with the Charleroi Regional Police

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.

2 On April 22, 2021, the panel filed a memorandum decision affirming the

PCRA court’s March 16, 2020 order on the grounds that Appellant’s PCRA

petition was untimely. Appellant moved for reconsideration of that decision,

and on May 27, 2021, in a per curiam order, we granted panel reconsideration

and withdrew the earlier memorandum.

J-S11033-21

Department searched the room, discovering drug paraphernalia, a white

residue on and near the paraphernalia later determined to be cocaine, and

two firearms.

Appellant was charged with two counts of persons not to possess

firearms, two counts of receiving stolen property, one count of possession of

a controlled substance with intent to deliver (“PWID”), and one count of

possession of drug paraphernalia.3 Appellant filed a pretrial suppression

motion, which the trial court denied after a hearing. Appellant then proceeded

to a jury trial in January 2017.

The evidence at trial revealed the following. On December 7, 2015,

Appellant was residing in a bedroom on the second floor of Kathleen

Patterson’s home in Charleroi, Pennsylvania. N.T., 1/18/17, at 37-38.

Appellant and Tiffany Courtley, Ms. Patterson’s daughter, had been dating and

both living in the bedroom, but Ms. Courtley was incarcerated in September

2015 and remained in jail through the date of the incident. Id. at 38-39, 41,

125-26. Even though Ms. Courtley was incarcerated, Appellant continued

living in Ms. Patterson’s home. Id. at 39-40. Ms. Courtley had placed a

padlock on the door of the bedroom and the room was often kept locked;

originally Ms. Patterson and Ms. Courtley each kept one of the two keys to the

lock, but Ms. Courtley lost one at some point so Ms. Patterson gave her key

to her daughter. Id. at 41-43. At the time of the incident, Ms. Patterson

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3 18 Pa.C.S. §§ 3925(a), 6105(a)(1); 35 P.S. § 780-113(a)(30), (32).

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believed that Appellant had possession of the only key to the padlock. Id. at

43.

On the evening of December 7th, Ms. Patterson removed the padlock by

unscrewing the screws of the metal plate that kept it in place and entered the

bedroom. Id. at 45. Appellant was not present at the house at the moment

she removed the padlock, but he had been at the house earlier in the day.

Id. at 40, 43. Ms. Patterson then called the Charleroi Regional Police

Department and spoke with Officer Michael Leasure, informing him that she

had found drug paraphernalia inside the room and she wanted to evict

Appellant. Id. at 57-58. Ms. Patterson testified at trial that no one else

entered the bedroom from the time she opened the door until the police

arrived. Id. at 44-45, 47, 54.

Officer Leasure, who was familiar with Appellant and had seen him at

Ms. Patterson’s home several times in the prior three months, arrived at Ms.

Patterson’s house and she showed him to the bedroom. Id. at 58-59, 95-96.

Ms. Patterson informed Officer Leasure that Appellant was residing in the

bedroom in question. Id. at 60. Upon entering the bedroom, Officer Leasure

discovered various items of contraband in plain view. These items included

two firearms located on a shelf in the open closet: a loaded Smith & Wesson

.45 caliber pistol and a loaded Charter Arms .38 special. Id. at 63, 66, 69-

70, 75-76, 77-79. Both firearms were later determined to be functional. Id.

at 135, 137.

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Officer Leasure also found various items of drug paraphernalia, including

a digital scale with a white residue on top and plastic sandwich bags with their

corners removed. Id. at 60, 64-69, 81. Some of the bags also had a white

residue on them. Id. at 65, 67. Officer Leasure explained that he knew from

his experience working on a drug task force that drug dealers commonly

ripped off the corners of the bags, packed them with drugs, and tied them

with a knot—the drug packages formed from the corners of the bags were

referred to as “diapers.” Id. at 64-65.

Officer Leasure discovered several items in the bedroom indicating

Appellant’s presence. Appellant’s driver’s license was found next to the digital

scale on a dresser in the bedroom. Id. at 60, 67-68, 100-01. Officer Leasure

also found two envelopes Ms. Courtley sent from the jail, which were

addressed to Appellant at the address of Ms. Patterson’s home in Charleroi.

Id. at 70-71, 82-83. The envelopes were postmarked October 6, 2015 and

November 23, 2015. Id. at 70-71, 84. Officer Leasure uncovered an

additional letter in the bedroom that was addressed to Appellant and from an

individual residing at a Pennsylvania state correctional institution; this letter

was dated “November 30th.” Id. at 71, 82, 84. In addition, Officer Leasure

found a mixture of men’s and women’s clothing in the room. Id. at 64. Officer

Leasure did not see any identifying information of any other individual during

his plain view search of the bedroom. Id. at 102-03.

Officer Leasure collected the evidence from the bedroom, including

some of the residue found on the dresser. Id. at 72, 80-81; Commonwealth’s

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Exhibit E. A Pennsylvania State Police forensic scientist who was qualified as

an expert in the field of drug identification tested the residue and confirmed

at trial that it contained cocaine. N.T., 1/18/17, at 154-58.

Evidence was submitted at trial indicating that both of the seized

firearms had been recently stolen from individuals in the Charleroi area. Corey

John Hazy, whose home was in Fallowfield Township but with a Charleroi

mailing address, discovered in the early morning hours of November 24, 2015

that someone had entered his truck parked at his residence and stolen his

Charter Arms .38 special. Id. at 106-10. He immediately reported the theft

to the Pennsylvania State Police. Id. at 108. The parties stipulated that on

November 13, 2015, the Smith & Wesson was reported stolen to the Charleroi

Regional Police Department, by James Smith, the owner of the firearm. Id.

at 124. The parties also stipulated that Appellant is a person not permitted to

possess a firearm under Pennsylvania law due to prior felony convictions. Id.

at 112.

The firearms were sent to a Pennsylvania State Police laboratory for

analysis. An expert in latent fingerprint examination testified that his

examination revealed that no identifiable prints were present on either of the

two firearms. Id. at 143-49. The firearms were also swabbed for DNA

samples, and these samples were compared to a buccal DNA sample collected

from Appellant. Id. at 168-76; N.T., 1/19/17, at 12-13. Detective Chad

Zelinski of the Charleroi Regional Police Department testified that when he

asked Appellant to provide a DNA sample in June 2016, Appellant stated

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“[j]ust because I touched them doesn’t mean they’re mine.” N.T., 1/19/17,

at 13.

Brittni Andalaro, the Pennsylvania State Police forensic scientist who

was qualified as an expert in DNA analysis, tested four samples, two from

each of the firearms. N.T., 1/18/17, at 179-80. Ms. Andalaro tested the four

samples using traditional short tandem repeat, or STR, testing and found that

the four DNA samples did not produce interpretable results, meaning that no

comparison could be made to Appellant’s DNA. Id. at 195-96.

However, Ms. Andalaro also conducted independent testing of the two

samples from the Smith & Wesson firearm to determine if a match could be

made based on Y chromosome DNA, which is only present in men. Id. at 198-

206. Ms. Andalaro discovered that the major component of the DNA found in

the first swabbed sample from the Smith & Wesson firearm matched

Appellant’s Y chromosome DNA haplotype. Id. at 206. Therefore, Ms.

Andalaro concluded that Appellant—along with his paternally related male

relatives who shared the identical or nearly identical Y chromosome—could

not be excluded as a contributor of the DNA of the major DNA contributor in

the first Smith & Wesson sample. Id. at 211-12. Ms. Andalaro stated that

Appellant’s Y chromosome DNA haplotype was found in no more than one out

of every 8,621 individuals. Id. at 211. Ms. Andalaro also tested the second

swab from the Smith & Wesson firearm and discovered that Appellant’s Y

chromosome DNA matched the major contributor from the mixture of DNA in

this sample as well to the same degree of statistical certainty. Id. at 213.

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Therefore, Appellant and his paternally related male relatives could not be

excluded as a contributor to the DNA from the second Smith & Wesson sample.

Id.

On January 19, 2017, the jury returned a guilty verdict on all charges.

On April 11, 2017, the trial court imposed an aggregate sentence of eight to

twenty years’ imprisonment. Appellant filed a direct appeal, and this Court

affirmed his judgment of sentence on April 2, 2018. Commonwealth v.

Brown, No. 1259 WDA 2017 (Pa. Super. filed April 2, 2018) (unpublished

memorandum). We affirmed the trial court’s denial of Appellant’s suppression

motion, found that Appellant had waived his sufficiency of the evidence

argument as it was not adequately developed in his appellate brief, and found

that Appellant had waived his weight of the evidence argument because it was

not preserved at sentencing or in a post-sentence motion. Appellant filed a

petition for allowance of appeal with the Supreme Court of Pennsylvania,

which the Court denied on August 8, 2018.

On August 5, 2019, Appellant filed his first, counseled PCRA petition.4

A hearing was scheduled for December 20, 2019, but as of that date the

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4 Appellant’s judgment of sentence became final on November 6, 2018, upon

the expiration of the 90-day period in which he could have sought

discretionary review with the United States Supreme Court. See 42 Pa.C.S.

§ 9545(b)(3) (“For purposes of [the PCRA], a judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.”); U.S.Sup.Ct.R. 13. As Appellant’s

petition was filed within one year of the date his judgment became final, the

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parties had agreed that an evidentiary hearing was not required for the PCRA

court’s resolution of the petition. On March 16, 2020, the PCRA court issued

a memorandum and order denying the petition. The PCRA court concluded

that Appellant’s claims of ineffective assistance of counsel lacked arguable

merit as the Commonwealth had produced sufficient evidence to prove that

Appellant possessed the contraband at issue and that he was aware that the

firearms were stolen. Memorandum and Opinion, 3/16/20, at 5-7. On March

18, 2020, Appellant filed this timely appeal.5

Appellant presents the following issues for our review:

1. Did the PCRA court err in denying Appellant’s PCRA Petition

where Appellant proved that direct-appeal-counsel was ineffective

for failing to adequately brief a challenge to the sufficiency of the

Commonwealth’s evidence regarding Appellant’s possession of

contraband?

2. Did the PCRA court err in denying Appellant’s PCRA Petition

where Appellant proved that direct-appeal-counsel was ineffective

for failing to challenge the sufficiency of the Commonwealth’s

evidence regarding Appellant’s knowledge that the firearms were

stolen?

Appellant’s Brief at 6 (PCRA court’s answers omitted).

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petition was timely. See 42 Pa.C.S. § 9545(b)(1) (“Any petition under this

subchapter, including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final. . .”).

5 Appellant contemporaneously filed his statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). On March 23, 2020, the PCRA court

entered a statement that the memorandum accompanying its order dated

March 16, 2020, would serve as its Pa.R.A.P. 1925(a) opinion.

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We review the denial of a PCRA petition to decide whether the PCRA

court’s factual determinations are supported by the record and its legal

conclusions are free of error. Commonwealth v. Small, 238 A.3d 1267,

1280 (Pa. 2020). When supported by the record, the PCRA court’s factual

findings and credibility determinations are binding on this Court, but we review

the lower court’s legal conclusions under a de novo standard of review. Id.

Our scope of review is limited to the findings of the PCRA court and the

evidence of record, which we view in the light most favorable to the

Commonwealth, the party who prevailed below in this case. Id.

In this case, Appellant raises claims related to the ineffective assistance

of his counsel in his direct appeal. In assessing a claim of ineffective

assistance under the PCRA, we begin our analysis with the presumption that

counsel has rendered effective assistance. Commonwealth v. VanDivner,

178 A.3d 108, 114 (Pa. 2018). To overcome that presumption, the convicted

defendant must establish each of the following three elements:

(1) the underlying claim has arguable merit; (2) no reasonable

basis existed for counsel’s action or failure to act; and (3) the

petitioner suffered prejudice as a result of counsel’s error, with

prejudice measured by whether there is a reasonable probability

that the result of the proceeding would have been different.

Id.

A challenge to the sufficiency of the evidence presents a question of law

and is subject to plenary review under a de novo standard. Commonwealth

v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of

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the evidence, we must determine whether the evidence admitted at trial and

all reasonable inferences drawn therefrom, viewed in the light most favorable

to the Commonwealth, were sufficient to prove every element of the offense

beyond a reasonable doubt. Id.

“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Wallace,

244 A.3d 1261, 1274 (Pa. Super. 2021) (citation omitted). “It is within the

province of the fact-finder to determine the weight to be accorded to each

witness’s testimony and to believe all, part, or none of the evidence.”

Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019). “The

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.”

Wallace, 244 A.3d at 1274 (citation omitted). As an appellate court, “we

may not weigh the evidence and substitute our judgment for that of the fact-

finder.” Id. (citation omitted).

In his first issue, Appellant argues that counsel in his direct appeal was

ineffective for not properly raising a sufficiency of the evidence challenge with

respect to the possessory element of each of the crimes of which he was

convicted. Appellant argues that this sufficiency challenge had arguable merit

as the Commonwealth did not show that he had actual or constructive

possession of the firearms, drugs, and drug paraphernalia found in Ms.

Patterson’s home. Specifically, Appellant asserts that the evidence presented

at trial showed only that he had at some point in the past lived with Ms.

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Courtley in the bedroom but there was no evidence that he had recently been

inside the bedroom. Appellant further contends that counsel lacked a

reasonable basis for his action because he attempted to raise a sufficiency

challenge on direct appeal, which this Court found to be waived. Finally,

Appellant avers that prejudice was established as this Court would have

reversed his convictions if this argument were properly presented in our prior

consideration of this matter.

In cases where the Commonwealth is required to prove possession of

contraband, including for the charges as to which Appellant was convicted, the

Commonwealth may meet this element by showing that the defendant had

either actual or constructive possession of the prohibited item.

Commonwealth v. Rojas-Rolon, ___ A.3d ___, 2021 PA Super 103, *3

(filed May 18, 2021) (PWID and possession of paraphernalia may be found by

constructive possession); Commonwealth v. Hopkins, 67 A.3d 817, 820

(Pa. Super. 2013) (PWID and unlawful possession of firearm may be shown

through constructive possession); Commonwealth v. Grekis, 601 A.2d

1275, 1280 (Pa. Super. 1992) (Commonwealth can show the “receiving”

element of receiving stolen property offense by constructive possession).

Constructive possession is a legal fiction used to prove the element of

possession of a prohibited item where the defendant was not in physical

possession of the item. Commonwealth v. Peters, 218 A.3d 1206, 1209

(Pa. 2019). “Mere presence or proximity to the contraband is not enough.”

Id. Rather, “[t]he evidence must show a nexus between the accused and the

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item sufficient to infer that the accused had the power and intent to exercise

dominion and control over it.” Id. In other words, the defendant must have

had “the ability to reduce the item to actual possession immediately or was

otherwise able to govern its use or disposition as if in physical possession.”

Id. (citations omitted).

Constructive possession “is an inference arising from a set of facts that

possession of the contraband was more likely than not” and “may be

established by the totality of the circumstances.” Hopkins, 67 A.3d at 820

(citation omitted). As with any other element of a crime, constructive

possession may be proven by circumstantial evidence that allows the trier of

fact to reasonably infer that the defendant exercised dominion and control

over the contraband at issue. Commonwealth v. Parrish, 191 A.3d 31, 36-

37 (Pa. Super. 2018). Constructive possession may also be found where two

or more actors have “joint control and equal access” to the item at issue.

Commonwealth v. Dix, 207 A.3d 383, 390 (Pa. Super. 2019) (citation

omitted).

Upon review, we agree with the PCRA court that Appellant’s ineffective

assistance claim based on appellate counsel’s failure to raise a sufficiency of

the evidence challenge to the Commonwealth’s proof of his constructive

possession of the contraband lacked arguable merit. Viewing the evidence at

trial in the light most favorable to the Commonwealth as the verdict winner

below, the Commonwealth established that Appellant had been staying at Ms.

Patterson’s house for several months, he had been at the house earlier on the

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day of the December 7, 2015 search, and that he was the sole resident of the

second-floor bedroom with possession of the only key to the padlock on the

door. N.T., 1/18/17, at 38-43, 58, 96. The record showed that, after Ms.

Patterson opened the locked door, Officer Leasure was the next individual to

enter the room and he saw the functional Smith & Wesson and Charter Arms

firearms, a white substance later determined to be cocaine, drug packaging,

and a digital scale, in plain view. Id. at 44-45, 47, 54, 63-70, 75-81, 157-

58.

Officer Leasure also described various items of evidence found inside

the bedroom that connected Appellant to that location. These items included

Appellant’s driver’s license found next to the digital scale; two envelopes

addressed to Appellant from Ms. Courtley and marked October 6 and

November 23, 2015; another letter to Appellant dated “November 30th”; and

men’s clothing found in the bedroom. Id. at 60, 64, 67-68, 70-71, 82-84,

100-01. No identifiable information for anyone else was found in the bedroom.

Id. at 102-03. DNA testing on two swabbed samples from the Smith &

Wesson firearm revealed a match to Appellant’s Y chromosome haplotype—

which is present in no more than one out of 8,621 individuals—leading the

DNA expert to conclude that neither Appellant nor his paternally related male

relatives could be excluded as a contributor to the DNA found on the Smith &

Wesson. Id. at 206-13. Finally, Appellant indicated to the detective tasked

with collecting his buccal DNA sample that he had handled the firearms,

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stating “[j]ust because I touched them doesn’t mean they’re mine.” N.T.,

1/19/17, at 13.

The Commonwealth thus satisfactorily proved Appellant’s constructive

possession of the contraband by showing his nexus with the bedroom in which

the items were found, which allowed the jury to infer that he had the power

and intent to exercise dominion and control over the contraband. Peters,

218 A.3d at 1209. Although no evidence was submitted at trial showing

precisely when Appellant last entered the second-floor bedroom in Ms.

Patterson’s house, the jury could reasonably deduce from the totality of the

circumstances that Appellant had exclusive access to the room based on the

testimony that he possessed the only key to the padlock and that Ms. Courtley

was incarcerated at the time of the search. Furthermore, Appellant’s personal

effects found in the bedroom near the cocaine and drug paraphernalia as well

as DNA matching Appellant’s paternal lineage on the Smith & Wesson firearm

suggest Appellant’s handling of the contraband in the past. Cf.

Commonwealth v. McClellan, 178 A.3d 874, 879 (Pa. Super. 2018)

(sufficient evidence to find constructive possession of gun found in shared

basement common area of home when DNA samples from the gun’s grip and

magazine showed that the gun was substantially more likely to have been

touched by the defendant as opposed to the family members with which he

lived); see also Commonwealth v. Gray, 469 A.2d 169, 171 (Pa. Super.

1983) (“Where contraband is found among the defendant’s personal effects,

in a place normally accessible only to the defendant, the fact finder may

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properly infer that the defendant had both the power and intent to control the

contraband.”). Therefore, we conclude that any argument that appellate

counsel could have raised on direct appeal concerning whether there was

sufficient evidence at trial that Appellant possessed the contraband lacked

arguable merit. VanDivner, 178 A.3d at 114.

In his second issue, Appellant argues that his appellate counsel was

ineffective for failing to raise a sufficiency of the evidence argument

concerning the receiving stolen property charges. Specifically, Appellant

argues that appellate counsel should have raised the issue of whether the

Commonwealth presented sufficient evidence to prove the element of the

offense that he knew or believed that the firearms were stolen. Appellant

contends that this claim had arguable merit because the evidence did not show

that he had any knowledge that the firearms were stolen and the thefts were

unrelated in time and location. Appellant further argues that appellate counsel

lacked a reasonable basis for his waiver of this sufficiency challenge on direct

appeal and that he suffered prejudice as a properly argued claim would have

merited the reversal of his receiving stolen property convictions.

The elements of the offense of receiving stolen property are: “(1)

intentionally acquiring possession, control or title, retaining, disposing, or

lending on the security of movable property of another; (2) with knowledge

or belief that it was probably stolen; and (3) intent to deprive permanently.”

Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super. 2012); see 18

Pa.C.S. § 3925. To meet its burden on the second element of the offense—

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which is often referred to as the “guilty knowledge” element—the

Commonwealth must show that the defendant knew the property in question

was stolen or that he believed that it had probably been stolen.

Commonwealth v. Gomez, 224 A.3d 1095, 1099 (Pa. Super. 2019);

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa. Super. 2015) (en

banc).

As there is rarely direct proof that a defendant knew for a fact that the

property was stolen, our Supreme Court has determined that the fact-finder

may infer guilty knowledge where the Commonwealth establishes the recency

of the theft. Robinson, 128 A.3d at 265-68. “Proof that the goods [in

question] were recently stolen [] may provide the jury with sufficient

circumstantial evidence to support an inference of guilty knowledge, since the

‘circumstances of possession as presented by the Commonwealth’ (the

recency of the theft) suggest ‘an explanation for the possession’ (that the

accused was the thief[]).” Id. at 267 (quoting Commownealth v. Williams,

362 A.2d 244, 249 (Pa. 1976)). “[O]nce the Commonwealth prove[s] the

recency of the thefts, the jury [is] free to infer the defendant’s guilt (that he

could have been the thief) unless the defendant [can] offer a satisfactory

alternative explanation for his possession of the stolen goods.” Id. at 269-

70.

Furthermore, “[e]vidence of the recency of the theft is not the only basis

for an inference of guilty knowledge.” Id. at 268 (internal citation omitted).

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Circumstantial evidence of guilty knowledge may [also] include,

inter alia, the place or manner of possession, alterations to the

property indicative of theft, the defendant’s conduct or statements

at the time of arrest (including attempts to flee apprehension), a

false explanation for the possession, the location of the theft in

comparison to where the defendant gained possession, the value

of the property compared to the price paid for it, or any other

evidence connecting the defendant to the crime.

Id.; see also Gomez, 224 A.3d at 1100. As with all culpable mental states,

the guilty knowledge element “may be inferred from circumstantial evidence.”

Robinson, 128 A.3d at 265.

In this matter, the Commonwealth proved that both firearms were

stolen in separate incidents within several weeks of the date they were seized

and from locations in close proximity to the location in which they were found.

The Smith & Wesson firearm was reported stolen to the Charleroi Regional

Police Department on November 13, 2015, 24 days before it was discovered

in Ms. Patterson’s home in Charleroi. N.T., 1/18/17, at 124. The Charter

Arms firearm was stolen from a home with a Charleroi mailing address on

November 24, 2015, 13 days prior to the search. Id. at 106-10. The

Commonwealth thus presented evidence not only that the firearms had been

stolen recently,6 but also the additional circumstantial evidence of guilty

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6 We recognize that the theft of the Smith & Wesson 24 days prior to its

recovery is near the upper bounds of what is considered a “recent” theft

allowing for the inference of guilty knowledge. Compare Commonwealth v.

Hogan, 468 A.2d 493, 498 (Pa. Super. 1983) (en banc) (“We cannot say that

as a matter of law a period of four weeks was so great as to render

impermissible the inference of guilty knowledge[.]”), with Commonwealth

v. Caesar, 369 A.2d 341, 344 (Pa. Super. 1976) (“guilty knowledge would be

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knowledge that they were being kept in a location close to where they had

been stolen. See Robinson, 128 A.3d at 268; Commonwealth v. Phillips,

392 A.2d 708, 709-10 (Pa. Super. 1978) (inference of guilty knowledge

permissible where defendant found with repainted motorbike one week after

theft in same city where it had been reported stolen).

The Commonwealth therefore presented sufficient circumstantial

evidence to support an inference of Appellant’s guilty knowledge that the two

firearms were stolen. Robinson, 128 A.3d at 268. Appellant did not offer

any alternate explanation for his possession of the firearms that would have

negated his knowledge or belief as to the fact that the firearms were probably

stolen, but we note that even if he had done so, the jury would have been

entitled to disregard Appellant’s explanation and find Appellant guilty of the

receiving stolen property charges. Id. at 267-68. Accordingly, we agree with

the PCRA court that Appellant’s second claim of ineffective assistance based

on appellate counsel’s failure to raise a sufficiency claim concerning

Appellant’s guilty knowledge lacked arguable merit. VanDivner, 178 A.3d at

114.

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conjectu[ral] at best” where automobile was stolen four weeks prior and the

defendant was in jail at the time of the theft), and Commonwealth v.

Stover, 436 A.2d 232, 233 (Pa. Super. 1981) (defendant’s possession of car

37 days after it was stolen “was not very ‘recent’” and thus did not support

guilty knowledge inference). However, in light of the fact that the two firearms

were stolen in separate incidents within 24 days of their recovery and in close

proximity to where they were found, we conclude that there was more than

sufficient evidence to allow the jury to infer guilty knowledge.

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For the foregoing reasons, we conclude that the PCRA court properly

dismissed Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2021

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